Butler (a pseudonym) v The Queen
[2021] VSCA 129
•13 May 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0107
| LIAM BUTLER (a pseudonym)[1] | Appellant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the appellant’s name.
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| JUDGES: | PRIEST and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 6 May 2021 |
| DATE OF JUDGMENT: | 13 May 2021 |
| MEDIUM NEUTRAL CITATION | [2021] VSCA 129 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1585 (Judge Gucciardo) |
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CRIMINAL LAW – Appeal – Sentence – Sexual penetration of a child under 16 – Manifest excess – Principle of totality – Serious offender provisions – Appellant served sentence for related offending in New South Wales before falling to be sentenced in Victoria – Sentence of four years’ imprisonment with non-parole period of two years and eight months manifestly excessive when considered with sentence already served for related offending – Insufficient weight given to rehabilitation while appellant at large between sentences – Resentenced to two years and nine months’ imprisonment with non-parole period of one year and nine months – Mill v The Queen (1988) 166 CLR 59; Atem v The Queen [2020] VSCA 35 applied; Crimes Act 1958 s 49B; Sentencing Act 1991 pt 2A – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr C K Wareham | James Dowsley & Associates |
| For the Respondent | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
I agree with the orders proposed by T Forrest JA and his reasons for them.
T FORREST JA:
Over the course of about a month in late 2008 into 2009 the appellant sexually abused Daniel Sinclair,[2] a then 14-year-old boy. Most of the abuse occurred in Wollongong, New South Wales (the ‘Wollongong offending’), although the last, most serious episode occurred in Portland, Victoria (the ‘Portland offending’).
[2]A pseudonym.
In April 2016 the appellant pleaded guilty in Wollongong Local Court to four charges of aggravated indecent assault.[3] He was sentenced to two years’ imprisonment with a minimum term to be served before parole eligibility of 18 months. He was released on or about 30 September 2017.
[3]Contrary to Crimes Act 1900 (NSW) s 61M(2), since repealed.
On 18 January 2016 a charge was filed for the Portland offence of sexual penetration of a child under 16.[4] On 2 August 2018 the appellant indicated he would plead guilty to this charge. This was on the first day of what, up until then, had been listed as a contested committal.
[4]Contrary to Crimes Act 1958 s 49B.
On 21 August 2019 the appellant pleaded guilty in the County Court to sexual penetration of a child under 16, and on 1 October 2019 he was sentenced by Judge Gucciardo to four years’ imprisonment, with a non-parole period of two years and eight months.
On 11 November 2020 Priest JA granted an extension of time within which to file an application for leave to appeal, as well as leave to appeal against the sentence imposed. His Honour considered that it was reasonably arguable that the sentence
imposed ‘insufficiently reflects the considerable disadvantage occasioned by the delay,[5] including anxiety that the applicant must have suffered from having a sentencing Damocletian sword hanging over his head, and the interruption of his rehabilitation’.[6]
[5]Approximately seven months (footnote added).
[6]Butler (a pseudonym) v The Queen (Victorian Court of Appeal, Priest JA, 11 November 2020) [19] (‘Leave Reasons’).
This appeal proceeds on the following ground:
In all the circumstances, the total effective sentence and non-parole period are manifestly excessive. Specifically, the learned [sentencing] judge failed to give sufficient weight to:
(a) the applicant’s plea of guilty and its considerable utility;
(b) the applicant’s rehabilitation and low risk of re-offending; and
(c) the principle of totality.
Factual background
I shall summarise the circumstances of both the Wollongong and Portland offending.
Wollongong offending
The appellant was a close friend of the complainant’s family. They had met at the Bathurst 1000 car race many years before the offending took place and, from time to time, the complainant and his siblings would stay with the appellant at his home in Wollongong. In December 2008, the complainant, then aged 14 years, travelled to Wollongong to stay with the appellant, then aged 44 years.
On four occasions during that stay the appellant indecently assaulted the complainant. The sentencing judge summarised these circumstances in his reasons for sentence:
Daniel Sinclair slept in a double bed in a spare room, while you slept in your own bedroom. On the first night, you got into bed with him, you rubbed his back and buttocks on the outside of his clothing. Daniel Sinclair was in shock. You were breathing heavily. You remained in Daniel Sinclair’s bed behind him for hours before leaving. The next morning, you again got into Daniel Sinclair’s bed with him. You again rubbed his back and stomach and the top of his penis.
On the second night, you again went into his bed and massaged his back and buttocks. You left after doing this for a while and later that week, you again laid beside Daniel Sinclair in his bed and began to rub his back and buttocks. You were breathing heavily. Daniel Sinclair returned home and did not disclose what had occurred.[7]
[7]DPP v Butler (a pseudonym) [2019] VCC 1585, [12]–[13] (‘Reasons for Sentence’).
Portland offending
The circumstances of the Portland offending were also concisely summarised by the sentencing judge:
In January 2009, Daniel Sinclair and his family went to spend the Christmas holiday period at a caravan park in a Victorian coastal town, where they had an annual booking for the holiday period. The caravan had an annex attached to it. You drove from your home in New South Wales to the caravan park for the holiday period with Daniel Sinclair’s family. During the holiday, Daniel Sinclair and you slept in the annex on single camp beds.
One morning the victim woke up and noticed the zipper on his sleeping bag was halfway down. Daniel Sinclair had tightly closed his sleeping bag around him because of what had happened in the previous month of December 2008 … That night you played a drinking game with the victim and his friends at a different campsite. It ended about midnight, by which time Daniel Sinclair was drunk. He went to bed in his underwear and fell asleep immediately. Later in the night, he woke up. You were kneeling between his legs, pulled down his underwear and you were sucking on his penis. Daniel Sinclair reacted as soon as he realised what was being done to him, saying, ‘Get the fuck off me. What do you think you are doing?’ You asked him to, ‘Please keep it down.’ Daniel Sinclair said, ‘You’re just fucked.’
The next morning you woke Daniel Sinclair up and told him, ‘We need to talk about this’ and Daniel Sinclair said, ‘Fuck off, we’ll talk about it later’, but at your insistence, he walked with you down to a nearby river. He was angry and upset. You told him that he had told you to do it by swearing on your mother’s life. Daniel Sinclair replied, ‘Your mother is dead.’ You then told Daniel Sinclair that you had been sexually abused as a child and you added, ‘Please don’t say it’s over’ repeatedly. You asked Daniel Sinclair not to tell his parents and later that day, you left the caravan park.
Daniel Sinclair did not tell his parents and over the years that followed, became increasingly angry. The relationship between Daniel Sinclair’s family and you remained unaltered. When Daniel Sinclair was 18, in about 2012, the family sent Daniel Sinclair to stay with you to sort out some personal problems. He drank himself to the point of passing out every day while he was there. Sometime earlier, he had observed you watching him shower when you came to visit his family home.
In November 2014, Daniel Sinclair disclosed the abuse to a friend, crying when doing so. That December 2014, he attended the Ballarat police station and reported the sexual offending. Four months later, police assisted him with creating a pretext call to assist the investigation. You acknowledged doing something to him at his house and at the caravan park and when asked why [you] had done so, you replied that you had questioned yourself many times over that.[8]
[8]Ibid [4]–[8].
The plea
The prosecution summarised the factual background and three victim impact statements were read to the Court. They were authored by the complainant, his twin sister and their mother.
The appellant’s submissions
For the appellant, the following matters were put in mitigation:
·The appellant was then 58 years old, one of four siblings, a victim of sexual abuse himself when he was six years old and a qualified fitter and turner.
·He had a solid work history until 2014, when the family dry cleaning business collapsed; he became bankrupt and lost his home.
·In 2000 his mother developed pulmonary fibrosis; he became his mother’s carer; she passed away in June 2008; the appellant’s mental health deteriorated and the offending occurred about six months after his mother’s death.
·He had never been married and had no children.
·He was imprisoned in New South Wales on 1 April 2016 and released on 30 September 2017 to complete a further six months on parole.
·He had refocussed his life around his Christian faith.
·The nature of the offence charged meant that this was an inherently serious matter involving a breach of trust, a significant age disparity and harm to the child complainant. Against that, the complainant was towards the upper end of the age range to which this offending applies, there was no threat of violence, the offending did not involve penetration of the complainant’s body, it was of short duration, and the appellant had ceased immediately upon hearing the complainant’s objections to the offending act.
·The applicant’s plea of guilty was significant in that it was made at a relatively early stage and had considerable utilitarian value.
·Delay was submitted to be relevant in a number of ways:
(a) Since the Portland offending in January 2009 the appellant had made substantial efforts at rehabilitation. There had been no further offending, he had voluntarily attended counselling with Mr Gerry Wenzel, psychologist, had genuine remorse, and had developed insight into the impacts of his offending.
(b) When imprisoned in New South Wales, he was a model prisoner and completed parole without incident.
(c) Four years had elapsed between the police interview and the appellant facing sentence in the County Court. The appellant had endeavoured to rebuild his life since his release from custody in New South Wales whilst being cognisant that the Victorian charge was hanging over his head.
·His prospects for rehabilitation were good.
·New South Wales legislation existed, and continued to exist, so that the Portland offending could have been dealt with by the New South Wales courts. It was unfortunate that this did not occur.
·The sentencing principle of totality had a significant role to play in the instant sentencing exercise.
·General deterrence was a significant sentencing factor; specific deterrence ought not to assume the same significance.
·Whilst the serious offenders provisions[9] applied, s 6D[10] had little role to play in the sentencing exercise.
·In all the circumstances, it was submitted, a suspended term of imprisonment was available and appropriate.[11]
[9]See Sentencing Act 1991 pt 2A (‘Sentencing Act’).
[10]Section 6D provides that a court, if sentencing a serious offender to a term of imprisonment, must regard the protection of the community as the principal purpose when determining the length of the sentence, and may impose a sentence longer than is proportionate to the objective gravity of the offence in order to achieve that purpose.
[11]Section 27 of the Sentencing Act, as it was in January 2009, allowed for the imposition of a suspended sentence of up to three years’ imprisonment for this offence, if the court was satisfied that making such an order was desirable in the circumstances, that it would be appropriate because of the existence of exceptional circumstances and that it was in the interests of justice to do so.
Psychological reports
Mr Wenzel (BA (Hons), M.Psychol (Hons)) was the appellant’s treating psychologist from October 2015 to February 2016. The appellant had been referred by his GP, Dr Mostert. Mr Wenzel saw the appellant in the lead-up to his sentencing hearing in Wollongong Local Court. He was of the opinion that the appellant had suffered from low-level depression for many years leading up to his mother’s death in June 2008. There was a history of sexual abuse as a six-year-old and a longstanding history of rejection by a ‘host of previous female friends’. In 2015 when the charges arose the appellant decompensated psychologically and became severely anxious, with agoraphobic anxiety, in addition to his underlying depression. His prospects were thought to be favourable, given his lack of prior or subsequent misconduct and his insight. Mr Wenzel thought he was unlikely to reoffend and that a custodial sentence would deleteriously impact upon his pre-existing major depression and anxiety disorder.
Dr Mathew Barth, psychologist, assessed the appellant, at the request of his instructing solicitor, on 9 October 2018 for the purpose of providing a report for his County Court plea.[12] Over a two-hour consultation, the appellant set out a detailed personal history, including sexual abuse as a six-year-old carried out by an older cousin. The appellant described his sense of inadequacy and rejection by women. Dr Barth in his supplementary report[13] considered that the appellant had some mild indications of anxiety and worry, but did not meet diagnostic criteria for any depressive or anxiety-based disorder. He considered that the appellant’s overall risk of recidivism was in the ‘Moderate-Risk’ category, with a reduction in risk likely to occur upon completion of a specialist sex offender treatment program.
[12]This report, dated 18 November 2018, was tendered at the plea hearing.
[13]Dr Barth’s supplementary report, dated 18 August 2019.
A large body of character references was tendered. These largely spoke in support of the appellant, his overall good character, contrition and efforts at rehabilitation before, during and since his imprisonment in New South Wales. This was a powerful body of evidence.
The prosecution’s submissions
In reply, the prosecutor submitted that this case was not at the lower end of the range of objective seriousness, general deterrence was an important consideration, the plea of guilty was not particularly early (although the appellant was entitled to a utilitarian benefit for it), there was a tension between s 6E of the Sentencing Act[14] and the principle of totality, protection of the community was the prime sentencing purpose, and the offending warranted an immediate custodial sentence.
The judge’s sentence
[14]Section 6E provides that every term of imprisonment imposed on a serious offender for a relevant offence must, unless otherwise directed by the sentencing court, be served cumulatively on any uncompleted sentence imposed on that offender, whether before or at the same time as that term.
Impact of offending
In formulating his sentence, the judge took into account the impact of the appellant’s offending on the complainant and his family. He referred to the three victim impact statements provided by the complainant, his sister and his mother, which he described as ‘compelling and powerful reading as to the profound impact and harm which this type of offending visits upon victims and their families’,[15] as well as the severe and ongoing impacts on the complainant’s life, including causing him to drop out of school in Year 9, abuse drugs and alcohol, self-harm and attempt suicide twice before the age of 22. The complainant had post-traumatic stress disorder needing psychological treatment and medication. He had struggled to maintain relationships, was aggressive and violent at home, and remained ‘fearful of others, paranoid and distrustful of dealings with people’.[16] The continuing presence of the appellant in the complainant’s family life after the offending had caused particular ongoing hurt and anger to him.
[15]Reasons for Sentence [15].
[16]Ibid [17].
The victim impact statements of the complainant’s sister and mother corroborated his account of the offending having a destructive impact on what had been ‘an early history of family unity and a lifestyle of friendship and positive experiences’.[17] Both the complainant’s sister and mother in their statements described the life-changing impact of discovering the abuse, each feeling guilt and anger, and the complainant’s sister requiring psychological treatment and medication to cope. It was the complainant’s sister who had had to ‘rescue’ her brother from the car where he had attempted to end his life.
[17]Ibid [19].
Objective gravity
The judge rejected the submission on behalf of the appellant that the offending lay towards the lower end of the scale for sexual penetration of a child under 16.[18] The appellant’s ceasing the offending behaviour immediately upon hearing the victim’s objections was ‘a lack of [aggravation], rather than a factor ameliorating gravity’.[19] Similarly, the absence of threatened or actual violence was ‘a lack of aggravation’ rather than a mitigating factor, and did not properly take into account the context of the offending that the appellant had himself created.[20]
[18]See above [13].
[19]Reasons for Sentence [27].
[20]Ibid [28].
The judge gave no mitigating weight to the submitted lack of penetration of the complainant’s body, considering that this submission ‘fails to come to terms firstly with the inherent violation of bodily integrity of the act performed, fellatio … and secondly, with the structure of the charge which deals with taking [any] part in an act of sexual penetration’.[21] The submission that the age of the victim was towards the upper end of the age range to which the offence applies was also dismissed, as it ‘fails to come to terms, not only with the stipulated age in the offence description, but [with] the more important considerations beyond mere chronological age, which inherently recognise under [16] year olds as still vulnerable and in need of protection’.[22] The judge disagreed that the offending was of short duration as submitted by the appellant, finding no support for this characterisation in the complainant’s description of the event.[23]
[21]Ibid.
[22]Ibid [27].
[23]Ibid [28].
The judge’s assessment of the offending as falling in the ‘middle range’ for the offence took into account that the instant offending (the Portland offending) was an escalation of previous offending (the Wollongong offending) ‘in that it has … progressed from intimate inappropriate touching to penetrative acts’,[24] as well as the appellant’s ‘moral culpability’[25] (although his Honour did not specify the level at which he assessed the latter, nor what factors had gone into his assessment).
[24]Ibid [29].
[25]Ibid.
Mitigating factors
The judge took into account the appellant’s personal circumstances, recounted at [13] of these reasons. His Honour also accorded a utilitarian value to the appellant’s entering a plea of guilty prior to the originally listed contested committal, which ultimately spared the complainant the need to give evidence. The judge also accepted that the plea provided ‘some evidence of remorse’, which would be considered along with the remorse the appellant had separately expressed.
While the delay in this case was not unusual in this type of case and the appellant did not claim any mitigation on that basis alone, the judge acknowledged and took into account the appellant’s efforts at rehabilitation made both during and since his incarceration in New South Wales, including his lack of further offending, undertaking voluntary counselling in the course of which he had expressed remorse and developed insight into the impact of his offending, his conduct while incarcerated including undertaking courses (particularly a sex offender program), completing a parole period free of incident or breach, ongoing participation in a weekly recovery program, adherence to his New South Wales child protection register obligations, and maintaining employment since August 2018.[26] Particularly in the context of his knowledge of the pending Victorian charges and the possibility of being returned to prison, this ‘[brought] into account rehabilitation as a significant factor’.[27] As a result of the appellant’s productive use of the period of delay, specific deterrence and community protection were also reduced (though not eliminated) as factors in the sentencing formulation.[28]
[26]Ibid [31].
[27]Ibid [41].
[28]Ibid.
Prospects for rehabilitation
The judge assessed the appellant’s prospects for rehabilitation as ‘good’.[29] This took into account the reports of both psychologists[30] who had assessed Mr Butler since his conviction for the Wollongong offending. Both psychologists reported remorse on the appellant’s part, but each also expressed doubt as to the appellant’s insight into his offending, either in terms of its causes or its impacts. On the strength of these reports, the judge deemed the appellant’s prospects for rehabilitation as predicated on his receiving offence-specific rehabilitation and gaining ‘insight into what factors underpinned [his] offending’.[31]
[29]Ibid [36].
[30]Mr Gerry Wenzel and Dr Mathew Barth: see above [14]–[15].
[31]Reasons for Sentence [36].
Also increasing the appellant’s prospects for rehabilitation in the judge’s view were his commitment to church-related activities and support and his work prospects, citing his ‘bundle of certificates’ related to religious training and doctrines and numerous TAFE vocational courses undertaken both during and after his previous time in custody.
In assessing the appellant’s prospects, the judge also took into account the ‘bundle’ of ‘impressive references’ tendered on behalf of the appellant from various church leaders. These ‘[highlighted his] remorse and sustained attempt at reformation’.[32]
[32]Ibid [39]–[40].
Though the appellant submitted that his rehabilitation to date should be viewed as an exceptional circumstance warranting a suspended sentence, the judge rejected this, finding that to do so would not give adequate weight in the sentencing exercise to denunciation, general deterrence and just punishment.[33]
[33]Ibid [42].
‘Interplay between New South Wales matters and Victorian matters’ — the principle of totality
The judge considered that the custodial sentence the appellant had already served in New South Wales for the Wollongong offending brought the principle of totality to bear, and there should be ‘an appropriate reduction [of the instant sentence] because of the New South Wales matters and subsequent sentence’.[34]
[34]Ibid [43].
His Honour saw a need to give weight to the sentence already served given that, first, though the matters had been dealt with separately, the allegation relating to the Portland offending had been before the New South Wales Court when the appellant was sentenced there, and, secondly, that the New South Wales legislation would have allowed for the offending in both States to be dealt with together in the New South Wales District Court.[35] It was not the appellant’s fault that this course had not been taken by either his legal representatives at the time or the prosecution.[36]
[35]Ibid [43]–[44].
[36]Ibid [44].
Though the judge accepted that the appellant had suffered a disadvantage in having to face each charge in turn in separate jurisdictions, he did not consider that the circumstances gave rise to exceptional circumstances warranting the imposition of a suspended sentence, which would be ‘totally inadequate under the circumstances and not in the interests of justice’.[37] There was ‘no question of double punishment’ as, his Honour stated, his application of the principle of totality took into account both terms of imprisonment in consideration of the overall punishment to be imposed.[38]
[37]Ibid [46].
[38]Ibid.
Serious sexual offender provisions
The judge was satisfied beyond reasonable doubt that the four aggravated indecent assaults for which the appellant had been sentenced to imprisonment in New South Wales were substantially similar to a sexual offence in sch 1 of the Victorian Sentencing Act.[39] Therefore ss 6D and 6F of the Sentencing Act applied and the appellant was to be sentenced as a serious sexual offender.[40]
This appeal
[39]Ibid [49]. See Sentencing Act s 6C(3)(a).
[40]Ibid [50].
The appellant’s submissions
The appellant conceded at the outset the difficulty of making out a ground of appeal based on manifest excess, noting that to succeed he would need to show that the sentence imposed was wholly outside the range of sentencing options available by so far a margin as to bespeak error in itself. It was correctly noted that this is a very stringent test.
It was submitted that the sentence imposed in this case nonetheless meets such a test. First, because, though the sentencing judge acknowledged their role in the sentencing formulation, his Honour failed to give proper weight to several mitigating considerations, including the utilitarian value of the appellant’s early plea of guilty, and the progress the appellant had made in his rehabilitation in the interim between his first period of incarceration in New South Wales and his sentencing for the instant offending.
Secondly, it was submitted, his Honour failed to properly apply the principle of totality, having regard to the combined length of the terms of imprisonment imposed in New South Wales and Victoria respectively. It was submitted that, the Wollongong offending and the Portland offending being so ‘similar in [their] nature and circumstances’ and so ‘proximate in time and committed against the same victim’, that a sentence which properly took into account the sentence already served for the former offending in conformity with the principle of totality required the judge to ‘stand back and look at the offending as a whole’, as though the two sets of offending had been heard together. This meant, so the submission went, combining the two sentences and deciding whether their sum — a total effective sentence of six years’ imprisonment with a non-parole period of four years — was an appropriate disposition. It was submitted that, had his Honour done so, he would have concluded that it was not.
The applicant further submitted that a correct application of the principle of totality also required the judge to take into account the fact that, as a consequence of the expiration of the New South Wales sentence including the parole period, the appellant had been at liberty for two years and one day by the time he came to be sentenced for the instant offending, which his Honour had not done.
The respondent’s submissions
The respondent submitted that the stringent test of manifest excess had not been met: the sentence imposed was well within the range of sentences for this type of offending and could not be said to bespeak error. In characterising the Portland offending as ‘serious’ and warranting the sentence imposed, the respondent cited the young age and vulnerability of the complainant, the breach of trust involved, the profound harmful impact of the offending, the fact that the offending represented an escalation in relation to the Wollongong offending, and the appellant’s attempts to manipulate the complainant on the morning following the instant offending. It was submitted that, contrary to the appellant’s submissions, the judge had correctly and adequately taken into account the appellant’s early plea of guilty, both for its utilitarian value and its demonstration of remorse, and the appellant’s efforts at rehabilitation since his release from prison in New South Wales.
In respect of the judge’s application of the principle of totality, it was submitted that his Honour had carefully considered the interplay between the Victorian and New South Wales proceedings and had given the full and proper weight to the sentence imposed in New South Wales that totality required. The respondent noted that the judge in his sentence had noted the appellant’s disadvantage in having the matters heard separately, and the extra-curial punishment this involved, as well as considering in his favour the rehabilitation that had taken place in the context of the pending Victorian charges.
However, the respondent pointed out that the New South Wales conviction also meant that the appellant stood to be sentenced as a serious sexual offender pursuant to pt 2A of the Sentencing Act.[41] Thus, so it was submitted, in applying the principle of totality the judge was also required to ensure it did not undermine the legislative purpose of s 6E of the Sentencing Act,[42] necessarily giving less weight to totality in the sentencing formulation. It was submitted that, therefore, the appellant’s contention that the judge had been required to ‘stand back’ and look at the offending as a whole, and that, in this light, the sum of the two sentences would be manifestly excessive for the entire course of offending, failed to properly take into account the appellant’s status as a serious sexual offender and the diminishing effect of this on the principle of totality.
[41]See above [32].
[42]See above n 14.
Analysis
After anxious consideration I have reached the view that the appellant has established his ground of appeal. It is most unfortunate that the entirety of the appellant’s misconduct was not dealt with in the one sentencing exercise, particularly as the legislative machinery that would allow this to occur exists in New South Wales, if not in Victoria. The consequence of splitting the sentencing into two hearings in different States is that the appellant had to wait from 14 August 2015 until 1 October 2019 for his Victorian sentence to be finalised.
Over that four-year period he had served the entirety of his New South Wales sentence. He was released back into the community on parole on 30 September 2017. Thus he was at large in the community for approximately two years before being
re-incarcerated in Victoria. During that time, as was observed in the Leave Reasons, the appellant must have suffered anxiety ‘from having a sentencing Damocletian sword hanging over his head’. It is also unarguable that the appellant made considerable steps towards reformation during this period. The sentencing judge described these efforts as follows:
A bundle of references was also received … This included references from Crossroads Prison Ministry, Mr Mile, [with] whom you lived after being released in 2017. He speaks of the positive effect of employment more recently, as well as community service and some leadership and mentoring, both in church-related activities and at work. He speaks highly of your rehabilitation.
I also carefully read letters from Jason Alexander, the head pastor at Central Church in Warners Bay; Mr Wilcock, a former pastor with whom you have also resided; Liz Roberts from Central Church in Newcastle; your attendance at Celebrate Recovery program, Michael Lockhart; Michael Whitehead; your brother, Jacob Butler;[43] Robert Pullez, a pastor at Central Church; Tim Abbey, the chaplain at Kirkconnell Correctional Centre; a friend, Lara McEwan.[44]
These are impressive references which highlight your remorse and sustained attempt at reformation, which indicate your prospects are probably good. I take all and each of these letters into account. The path undertaken by you to seek to address the matters that have brought you before the court, have been faith-related and work-related and are to your credit, as well as other recovery and reclamation efforts. The more specific offence-related work is still to be undertaken.
The delay that has occurred in this case in relation to the disposition of this matter, brings into account rehabilitation as a significant factor which I will take into account [in formulating] an appropriate sentence. In this sense, specific deterrence and community protection are reduced, if not eliminated, in the sentencing equation.[45]
[43]A pseudonym.
[44]A pseudonym.
[45]Reasons for Sentence [38]–[41].
In Mill v The Queen,[46] the High Court considered the situation of an appellant who had committed two armed robberies in Victoria, and one in Queensland, within a period of six weeks. He was sentenced for the Victorian offences to 10 years’ imprisonment with a non-parole period of eight years. Upon parole being granted in Victoria he was returned to Queensland and convicted of the Queensland armed robbery. He was sentenced to a further eight years’ imprisonment with a recommendation that he be considered for parole after three years in recognition of his Victorian sentence. In allowing an appeal, the High Court observed that the exposition of the totality principle by the New South Wales Court of Criminal Appeal in R v Todd[47] was correct. The Court said:
In our opinion, the reasoning expounded in Todd is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time. But, with respect, we think that the exposition of principle in Todd has been misunderstood by the Court of Criminal Appeal in Jenkyns and in the present case. The principle is not confined in its operation to the fixing of a non-parole period. It applies also to the fixing of a head sentence which, when considered in association with the head sentence imposed by the first sentencing court, must be seen to be appropriate in all the circumstances. In the absence of statutory provisions enabling the new sentence to be backdated to a time when the offender was in custody serving the earlier sentence in the other State, it is not correct for the second sentencing court to determine the head sentence by reference to the normal tariff applicable to the offence for which he is then being sentenced, leaving the fixing of a non-parole period alone to reflect the principles laid down in Todd. The long deferment of the trial or punishment of an offender, with the consequent uncertainty as to what will happen to him, raise considerations of fairness to an offender which must be taken into consideration when the second court is determining an appropriate head sentence. The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.[48]
[46](1988) 166 CLR 59 (‘Mill’).
[47][1982] 2 NSWLR 517, 519–20 (Street CJ).
[48]Mill (1988) 166 CLR 59, 65–6 (Wilson, Deane, Dawson, Toohey and Gaudron JJ).
As Priest JA said in the Leave Reasons,
Two things principally may be gleaned from this passage. First, the totality principle is not solely concerned with the fixing of the non-parole period, but also the head sentence. Secondly, delay in sentencing — with the consequent uncertainty as to what will happen — raises considerations of fairness which must be taken into consideration when the second court is determining an appropriate sentence.[49]
[49]Leave Reasons [16].
In Mill the Court also said:
In our opinion, the proper approach which [the second judge] should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.[50]
[50]Mill (1988) 166 CLR 59, 66–7.
If this approach were applied in the present case the appropriate process would have been for the sentencing judge to have asked himself, if he were dealing with all four New South Wales offences and the Victorian offence, what would have been the likely head sentence imposed.
A process of simple arithmetic demonstrates that the combined head sentences of the Wollongong and Portland offending was six years. As I have observed, there was no overlap between the sentences — the full New South Wales sentence (including parole period) was completed well before the Victorian sentence commenced. The combined minimum terms would result in at least four years and two months being served over two periods. If the sentencing judge had taken the approach suggested in Mill, and I have no reason to think otherwise, this would mean that he asked himself the question, ‘What would have been the likely total effective head sentence imposed if all the offending were heard together?’, and he answered that question to himself, ‘Six years.’ This, of course, resulted in a head sentence being imposed for the Portland offending of four years.
Approached in this way, I am of the view that the impugned sentence of four years’ imprisonment is, in all the circumstances, manifestly excessive. I have reached this conclusion, notwithstanding the considerable impact this offending had occasioned on the complainant and his family, for the following reasons:
(d) The application of the principle of totality as outlined at [42]–[45] of these reasons. In my view, in the unusual circumstances of this case, this principle must assume significant weight in the sentencing process, despite the legislative purpose of s 6E of the Sentencing Act.
(e) The four-year delay between police interview and resolution, during which time the appellant served his New South Wales sentence, and spent two subsequent years attempting, with some success, to rehabilitate himself in the knowledge that the most serious offence in the sequence of offending had not yet been dealt with.
(f) His plea of guilty, albeit entered at the door of the contested committal, spared the complainant the ordeal of cross-examination.
(g) He, as the sentencing judge found, is genuinely remorseful, and has good prospects for rehabilitation.
(h) The offending was undoubtedly serious, however, many graver examples of this offence come before the courts.
This Court observed recently that[51]
[t]he ground of manifest excess is notoriously difficult to establish. To succeed on this ground, [the applicant] must show that the sentence imposed was ‘wholly outside the range of sentencing options available’.[52] The excess must be ‘so far outside the range of a reasonable discretionary judgment as to itself bespeak error’.[53] The ground will only succeed if the appellate court considers that the sentence is ‘unreasonable or plainly unjust’.[54] This is a very stringent test.
[51]Atem v The Queen [2020] VSCA 35, [48] (Tate, McLeish and Weinberg JJA) (citations in original).
[52]Clarkson v The Queen (2011) 32 VR 361, 384 [89].
[53]Hanks v The Queen [2011] VSCA 7, [22].
[54]R v Pham (2015) 256 CLR 550, 568 [56] (Bell and Gageler JJ), quoting House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
I consider that the moderating factors referred to above, particularly the principle of totality and the impact of delay, were not adequately reflected in the original sentence of four years’ imprisonment, which, as I have explained, must be considered in the light of the New South Wales sentence for related conduct. I would allow the appeal, set aside the sentence imposed in the County Court, and substitute a sentence of two years and nine months’ imprisonment. I would fix a non-parole period of one year and nine months. I will declare a pre-sentence detention of 590 days, not including this day.
In the circumstances, a s 6AAA statement is highly artificial and I note that the sentencing judge declined to make such a statement. Notwithstanding this artificiality, I state that, but for the appellant’s plea of guilty, and in circumstances where he had already served his sentence in New South Wales and been found guilty at a long-delayed trial, I would have imposed a sentence of four years’ imprisonment with a non-parole period of three years.
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